Citation Nr: 1524929
Decision Date: 06/10/15 Archive Date: 06/19/15
DOCKET NO. 11-29 960 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas
THE ISSUE
Entitlement to service connection for a respiratory disorder, to include as due to exposure to asbestos.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
G. E. Wilkerson, Counsel
INTRODUCTION
The Veteran served on active duty from June 1961 to June 1965.
This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas.
In August 2013 and October 2014, the Board remanded the matter to the Agency Jurisdiction (AOJ) for additional development. The case has since returned to the Board for the purpose of appellate disposition.
This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.
FINDINGS OF FACT
1. The Veteran was exposed to asbestos while in service.
2. The Veteran's currently diagnosed asbestos-related pleural disease is related to his in-service exposure to asbestos.
CONCLUSION OF LAW
The criteria for service connection for asbestos-related pleural disease have been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).
Given the favorable action taken as to the claim of service connection on appeal, the Board finds that all notification and development actions needed to fairly adjudicate that claim have been accomplished.
II. Law and Analysis
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).
Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a), and not the current appeal. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 38 U.S.C.A. § 1101.
Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular have been included in the VA Adjudication Procedure Manual and Manual Rewrite. See Adjudication Manual, M21-1, part VI, para. 7.21 (October 3, 1997); Manual Rewrite, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006); see also VAOPGCPREC 4-00 (April 13, 2000).
The guidelines provide that the latency period varies from 10 to 45 years between first exposure and development of the disease. Also of significance is that an asbestos-related disease can develop from brief exposure to asbestos or from being a bystander. The most common disease is interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusions and fibrosis, pleural plaques, mesothelioma of the pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. The Manual Rewrite states: "During World War II (WWII), several million people employed in U.S. shipyards and U.S. Navy Veterans were exposed to crystallite products as well as amosite and crocidolite since these varieties were used extensively in military ship construction." M21-MR, Part IV.ii.2.C.9.g
In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. See M21-1, Part IV.ii.2.C.9.h; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Thus, VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993).
In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
The Veteran contends that he has a respiratory disability related to his in-service exposure to asbestos. The Veteran's DD 214 shows that he served in the United States Navy as a Machinist Mate, which, according to regulations is shown to be a probable occupation for exposure to asbestos while onboard a naval ship. As indicated in previous Board remands, VA has determined that the Veteran was exposed to asbestos in service. The question remains as to whether he has a respiratory disorder associated with this exposure.
A February 2010 report from Dr. H. of Saint Luke's Health System notes his observation that the Veteran had some calcified pleural plaques on a CT scan of his chest.
On VA examination in October 2010, the examiner diagnosed V/Q (ventilation/perfusion ratio) mismatch from atelectasis and scant amount of bronchiectasis. A chest x-ray revealed no evidence of calcified pleural plaque and no active heart or lung disease was indicated.
A March 2013 private chest x-ray from Saint Luke's Health System revealed bibasilar subsegmental atelectasis. The pleura were normal. A CT scan of the chest revealed multifocal bilateral discontinuous partially calcified foci of pleural thickening consistent with asbestos related pleural disease.
An April 2013 report from private physician Dr. K. notes his impression that the Veteran probably has mild interstitial lung disease or pulmonary fibrosis secondary to asbestos exposure, as well as COPD/chronic bronchitis.
A June 2013 CT scan of the chest from the Providence Medical Center includes a notation that interstitial lung disease was not seen. There was suspect very mild bronchiectasis in the lower lobes. An impression of no acute process in the chest, no dominant nodule in either lung, minimal ground glass opacity in the right upper lobe, and probably mild bronchiectasis in the lower lobes was noted.
An August 2013 report from Dr. K. notes that, regarding the subpleural nodule in the left lower lobe it was seen by an old CT in February 2010 done at St. Luke's and again seen on the recent Providence CAT scan, he found it certainly possible that this was a pleural scar, although there appeared to be a slight increase in size since before. He noted that this needed follow-up in a year to make sure this it was not a slowly growing neoplasm.
On VA examination in November 2013, the examiner diagnosed chronic obstructive pulmonary disease and asbestos exposure. A November 2013 chest x-ray revealed atherosclerotic changes of the aorta and mild hyperexpansion of the lungs. The VA examiner noted that the lungs were clear with no mass. He determined that a diagnosis of asbestosis was not supported in the record.
A December 2013 report from Dr. K. indicates that a CT scan of the chest was obtained and compared with the previous one. No significant pulmonary fibrosis was observed. The radiologist did not report any clinically significant pulmonary nodule. There was minimal scaring seen in the left lower lobe. Dr. K. noted that, from a pulmonary standpoint, the Veteran had a 30 year history of tobacco use but his PFTs have shown no significant obstructive airway disease. He further noted that if a CT scan of the chest had not shown any significant interstitial lung disease, the minimal crackle seen in the left lower lobe are probably related to mild bronchiectasis. At that point, he did not see any strong evidence of asbestosis or any malignancy.
A January 2015 treatment report from Saint Luke's Health System reflects the examiner's impression that he did not feel that the Veteran had COPD based on his lung function tests. The treating physician also indicated that there was obvious evidence of asbestos-related pleural disease as evidence by his calcified pleural plaques. He noted that, in the absence of other trauma, surgeries or infection (of which he has had none), this was nearly pathognomonic for asbestos-related pleural disease.
The record contains conflicting evidence as to whether the Veteran has a respiratory disorder associated with asbestos exposure. While the VA examiner determined that the Veteran had been exposed to asbestos, he found that a diagnosis of asbestosis was not warranted and rather that the Veteran had COPD unrelated to asbestos. In contrast, the Veteran's treating physician at Saint Luke's has continued to note diagnosis of asbestos-related pleural disease.
In sum, based on the entire record, the Board finds the evidence to be relative equipoise in showing that the Veteran has a respiratory disorder related to his conceded in-service exposure to asbestos.
In resolving all reasonable doubt in the appellant's favor, service connection for asbestos-related pleural disease is warranted.
ORDER
Entitlement to service connection for asbestos-related pleural disease is granted.
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CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs